THE POISON GARDEN website

Pontifications on Poison

Being some ramblings on events associated with poisonous plants.

Tuesday 8th November 2011

If you read, and believe, the right-wing press in the UK, you
would think that British judges apply the law to suit their view
of the world and that view puts the criminal above the victim
and society, in general. If you read the right-wing press
carefully and also read other more objective sources, you find
that UK judges apply the law as laid down by parliament and, if
the results are not what is desired, it is for parliament to
make different laws not for judges to interpret the law and base
decisions on what the judge thinks parliament intended.

To an outsider, the American judicial system seems to operate
in a completely different way. Because the constitution is
paramount in the USA, judges can decide that a law passed by
politicians reflecting today’s issues can be overturned if the
judge believes that it infringes the constitution. That appears
to give a judge a great deal of power to decide issues based on
his underlying prejudice about how the constitution should order
society.

Certainly, a ruling reported on Monday from a federal
District Judge in Washington looks very much as though the judge
is applying his opinion to an issue and using the primacy of the
constitution to undo government efforts to reduce the harm
caused by smoking. That view is supported by his comments that
the warnings were 'not factual' and were part of the federal
government's 'obvious anti-smoking agenda'.
The New York Times has a useful report.

The Obama administration has made reducing tobacco use one of
its priorities. The Family Smoking Prevention and Tobacco
Control Act was one of the first pieces of legislation under
President Obama and legal challenges to it began almost before
the ink was dry on his signature.

The Act gives the Food and Drug Administration (FDA) a number
of powers aimed at reducing tobacco use. When the FDA announced
that it would require much more graphic warnings to appear on
cigarette packs, the tobacco companies’ legal armies moved into
action. The basis of their complaint was that any control over
how cigarettes could be marketed was a violation of the First
Amendment right to free speech. The FDA enjoyed an early success
when a federal District Judge in Kentucky ruled that this was
not the case.

On Monday, however, Judge Richard J. Leon of United States
District Court in Washington issued an injunction preventing the
new warnings from being introduced because he felt that there
was a good chance that the tobacco companies’ view would prevail
when the matter is finally decided. Thus any damage done to
their businesses before a final outcome would be unlawful
assuming the warnings are not permitted by the eventual
decision.

It is thought that this ruling will be appealed and, given
that there are actions in other district courts, it is said to
be likely that the matter will end up in front of the Supreme
Court but, as is the American way, it will take many years to
reach that point.

The judge’s decision seems to be based on the fact that the
new warnings would use staged photographs depicting the effects
of smoking, including one of a corpse, which the tobacco
companies say is wrong because warnings on packs must be factual
and uncontroversial if they are to avoid a First Amendment
violation.

There will, of course, always be disagreement between the
tobacco lobby and the rest of the world over what amounts to
factual information about the effects of smoking but the notion
that warnings must be uncontroversial is just bizarre.

It has to be said that some of the reporting of this story
might lead you to think that the judge is saying that warnings
that harm the tobacco companies business cannot be allowed. That
would be a perverse position given that the purpose of the
warnings is to reduce the turnover of tobacco companies.

But, in fact, what the judge has said is that it cannot be
right to allow something to happen that could cause irreparable
damage to the companies’ business if that ‘something’ is,
ultimately ruled to be unconstitutional. Of course, what the
judge has done has the effect of pre-empting that ultimate
ruling so, instead of the apparent carefully structured court
system governing the outcome, a relatively lowly district judge
has made the decision.

What his ruling ignores, however, is that the will of the
people, expressed through their elected representatives, is
being frustrated and, in considering only the commercial harm
that may be done to the tobacco companies, the actual harm that
will be done to any number of people who might have quit when
faced with the new warnings is being ignored.

And that harm is every bit as irreparable as any loss of
profits to corporate America.